Court File and Parties
DIVISIONAL COURT FILE NO.: 658/23
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Christopher Beverley Newman also known as Christopher Warren Bonin, Appellant
AND:
The Director of the Ontario Disability Support Program, Respondent
BEFORE: Matheson J.
COUNSEL: Self-represented Appellant
M. Singh, for the Respondent
HEARD at Toronto: In writing.
Endorsement
Endorsement
1This matter arises because Mr. Newman was late in seeking to appeal a decision of the Social Benefits Tribunal. He sought to file his notice of appeal after the 30-day time period in s. 70(a) of O.Reg. 222/98 under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B.
2The notice of appeal was filed in the North East Region in late October 2022, less than two weeks late. The Respondent disputed the proposed appeal. The dispute was not based on the length of the delay. The Respondent’s position was and is that there is no jurisdiction to extend the time, relying on Kim v. Ontario (Director, Disability Support Program), [2012] O.J. No. 4561 (Div. Ct.) and the authorities cited in that case.
3By endorsement dated May 18, 2023, A.D. Kurke J. (the local administrative judge for the Divisional Court in the North East Region) directed that a preliminary issue in this matter – specifically that Mr. Newman was proposing to appeal after the 30-day time period – be heard by a panel of the Court in the October 2023 sittings. As set out in the endorsement, Mr. Newman’s court materials were due in July 2023.
4Mr. Newman missed the deadline for his court materials and requested an extension of time. By endorsement dated September 6, 2023, the local administrative judge granted Mr. Newman’s request for an extension of time and adjourned the hearing over the objection of the Respondent. The local administrative judge imposed terms.
5In order to reduce the delay arising from the adjournment, the local administrative judge directed that the hearing of the preliminary issue be scheduled on the Toronto Region list in March 2024. The local administrative judge further ordered that Mr. Newman perfect the portion of his appeal dealing with the preliminary late-filing issue by January 19, 2024, failing which his appeal “will be dismissed unless the appellant satisfies the case management judge that his failure to perfect by that date was beyond his control.”
6In November 2023, Mr. Newman sought an extension of time from January 19, 2024 to March 8, 2024, for bereavement. The Respondent objected due to the history of the matter and the length of time Mr. Newman still had to complete his materials. I, the case management judge, granted a shorter extension by directions given on November 20, 2023:
Given the extensions of time previously given to the moving party for his court material in this matter, and given the other case management history, another lengthy extension will not be granted.
The moving party shall have until January 30, 2024 to serve, file and upload his court materials to CaseLines. The terms of Justice Kurke’s endorsement dated Sept. 6, 2023, shall continue to apply subject only to this change of date.
7Mr. Newman asked if there was a formal order and was notified as follows: “This Court’s directions are orders (as set out in the Consolidated Practice Direction for Divisional Court Proceedings, Part I, G para. 34). However, if a more formal form of order is requested, the moving party may prepare one, obtain the approval of the respondent, and submit it to the Court office for review and, if acceptable, signature.” By directions of November 30, 2023, I reinforced that a formal order was not required but Mr. Newman could submit a form of order if he wished to do so. He did not submit a form of order.
8The hearing was scheduled for March 11, 2024. The deadline for Mr. Newman’s appeal materials was January 30, 2024. He failed to comply.
9On February 12, 2024, counsel to the Respondent emailed Mr. Newman, copying the Court, asking whether he intended to proceed given that no court materials had been received. On February 13, 2024, Mr. Newman replied and acknowledged that he had not served his court materials. He said he had outstanding administrative matters in an academic setting and that he had been working on an urgent application for judicial review regarding his prior academic semester. He said he would consider the Respondent’s inquiry and let her know “very soon. Likely by sometime next week.”
10Due to Mr. Newman’s acknowledged failure to comply with his deadline in this Court, I gave the following directions on February 13, 2024:
According to the recent emails, Mr. Newman has failed to comply with this Court’s directions. He was required to serve and file his court materials by January 30, 2024.
As set out in Kurke J.’s directions of September 6, 2023, Mr. Newman’s failure to do so means that his proceeding will be dismissed unless he satisfies me that his failure to perfect by that date was “beyond his control”. Mr. Newman shall have until February 20, 2024, to provide the respondent and the court with any evidence and submissions based upon which he may ask that this matter not be dismissed. The respondent shall provide its position by February 21, 2024.
There will then be further directions, which may include the dismissal of this proceeding.
Analysis
11Mr. Newman has since provided some submissions, discussed below. In addition, he contacted the Court in the North East Region, challenging the steps taken in Toronto Region. In response, the local administrative judge notified Mr. Newman as follows on February 14, 2024:
This matter was transferred to Toronto Div. Ct. for administration on consent of Mr. Newman (Bonin) and the respondent.
Toronto is handling the matter, and a ruling has been made by the case management judge that conforms to my earlier order.
Any complaints that Mr. Newman (Bonin) wishes to make must be made to the Toronto case management judge. I will not interfere in what is now within the jurisdiction of that judge.
12Mr. Newman now submits that the transfer gives rise to a jurisdictional issue, and his matter should have remained in the North East Region. However, the transfer is permitted on agreement of the parties as set out by the local administrative judge. Nor did Mr. Newman say otherwise in the case management steps and scheduling in Toronto that took place last Fall, after his adjournment request was granted on terms.
13With respect to timing, Mr. Newman’s objection about the change of Region does not assist him because he did not meet his deadlines under either the local administrative judge’s order or with the benefit of my extension of time. Either way, he must show that his failure to do so was beyond his control.
14Mr. Newman now submits that the Respondent should bring a formal motion before the Court can proceed to address his non-compliance. However, the September 6, 2023 order granting the adjournment on terms did not require a formal motion. I dispense with the need to serve a notice of motion. That formality is not needed to consider compliance with the terms of an order of this Court in this case.
15Mr. Newman submits that he has a serious disability, he is still in mourning, he needs more time to respond (at least 60 or 90 days), he wants to get a lawyer and that the process is unfair. The Respondent submits that the appeal should be dismissed as an abuse of process due to repeated refusals to comply with the Court’s schedule over a lengthy period of time and a complete failure to move this matter forward despite numerous extensions given by the Court.
16These positions must be considered in context. It has been over a year since Mr. Newman put forward his notice of appeal, and he has not served his material on the preliminary issue. That is a very long period of time to see so little done. Further, Mr. Newman has been given substantial extensions of time, and, when the local administrative judge gave him until January 19, 2024 in response to his requested adjournment, that delay came with a clear message that the appeal would be dismissed unless Mr. Newman could show that the failure to comply was beyond his control. Mr. Newman has had ample notice of the consequences of his default. Next, he did not come forward in January, before his deadline, with any new information that could impair his ability to comply. He did not communicate with the Respondent or the Court until the Respondent raised the issue in February. In response, Mr. Newman did not say he was impaired by his disability or wanted a lawyer. He said he was engaged with administrative matters in the academic setting and a new application for judicial review.
Conclusion
17I conclude that there are multiple grounds to dispose of this proposed appeal. First, Mr. Newman has known of the consequences of a failure to meet his deadline since September 2023. He has not established that the failure to meet his deadline was due to circumstances beyond his control. The appeal is therefore dismissed under the terms of the September 6, 2023 adjournment order. Second, there has been a lengthy and repeated failure to comply with the Court’s directions and there has been undue delay. I would therefore, in any event, dismiss the appeal on these grounds.
18This appeal is therefore dismissed. No costs are claimed or awarded. The hearing date is vacated.
Matheson J.
Date: February 23, 2024